City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (CCT184/14) [2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23 September 2015)

Key Facts

Issues

• The primary issue was the constitutionality of sections 22 and 24 of the Electronic Communications Act 36 of 2005. The City of Tshwane challenged these provisions, arguing they permit arbitrary deprivation of property under section 25(1) of the Constitution. The court had to determine whether the Act’s provisions, which allow licensees to construct and maintain electronic communications infrastructure on private land without consent, violate constitutional protections against arbitrary property deprivation.
• The court considered whether the Expropriation Act 63 of 1975 governs the exercise of rights under section 22(1), which permit licensees to use land for electronic communications. The majority concluded that section 22(1) does not authorize expropriation but rather creates servitudes, and thus the Expropriation Act does not apply. The minority disagreed, asserting that the Expropriation Act’s framework was necessary to address compensation.
• The court addressed whether the phrase 'due regard to applicable law' in section 22(2) mandates that licensees comply with the common law of servitudes (e.g., 'civiliter modo') and the Expropriation Act. The minority judgment argued this requirement was not met, while the majority held that the common law principles already embedded in the Act’s framework (e.g., servitudes) sufficiently regulated the exercise of these rights.

Holdings

• The Constitutional Court held that sections 22 and 24 of the Electronic Communications Act 36 of 2005 are valid and consistent with the Constitution. The court determined that these provisions do not require landowner consent for licensees to construct and maintain electronic communications infrastructure and that they align with the common law of servitudes, which imposes obligations to act 'civiliter modo'.
• The court concluded that the Expropriation Act 63 of 1975 does not apply to the exercise of rights under section 22 of the Electronic Communications Act. Section 22 permits the use of land for communications infrastructure without constituting expropriation, and thus no compensation is payable for such use.
• The court dismissed the City of Tshwane's appeal and ordered it to pay the costs of Link Africa (Pty) Limited. The majority judgment affirmed that the City failed to establish a valid constitutional challenge to the Act's provisions and that its actions were not in the public interest.

Remedies

• The appeal was dismissed as the court found no valid grounds for overturning the decision.
• The City of Tshwane Metropolitan Municipality is ordered to pay the costs of Link Africa (Pty) Limited as part of the court's decision.

Legal Principles

• The Constitutional Court used a purposive approach to interpret sections 22 and 24 of the Electronic Communications Act, emphasizing alignment with constitutional rights and public interest in expanding telecommunications infrastructure.
• The judgment distinguishes between deprivation of property and expropriation under section 25(1) of the Constitution, concluding that the Act's provisions do not constitute arbitrary deprivation.
• The Expropriation Act was deemed inapplicable to licensees under the Electronic Communications Act, as the Act's provisions do not authorize expropriation but rather statutory servitudes.
• The judgment considered whether PAJA's audi alteram partem (fair hearing) principle applied to licensees' actions, concluding that commercial decisions do not constitute administrative action requiring such procedural fairness.
• The court held that servitudes created by the Act must be exercised in a civiliter modo (respectfully and with due caution), balancing licensee rights with landowner interests.

Precedent Name

• Agri SA v Minister for Minerals and Energy
• CUSA v Tao Ying Metal Industries and Others
• Mkontwana v Nelson Mandela Metropolitan Municipality
• Telkom SA Ltd v MEC for Agricultural and Environmental Affairs, KwaZulu-Natal and Others
• Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government and Another
• Mobile Telephone Networks (Pty) Ltd v SMI Trading CC
• Motswagae and Others v Rustenburg Local Municipality and Another
• Phumelela Gaming and Leisure Ltd v Gründlingh and Others
• Linvestment CC v Hammersley and Another
• Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others

Cited Statute

• Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Constitution of South Africa
• Expropriation Act 63 of 1975
• Electronic Communications Act 36 of 2005

Judge Name

• Cameron J
• Madlanga J
• Khampepe J
• Molemela AJ
• Froneman J
• Nkabinde J
• Jafta J
• Tshiqi AJ
• Theron AJ
• Moseneke DCJ

Passage Text

• The statute is designed to avoid this no-winner conflict. What it seeks, is to bring our country to the edge of social and economic development for rural and urban residents in a world in which technology is so obviously linked to progress.
• Section 22(1) does not authorise expropriation of land at all. On the contrary, this section permits a licensee to use another person's land to construct a communications network or facility.
• Compensation is not payable for deprivation but is paid for expropriation. This comes directly from section 25(2) of the Constitution. That section permits expropriation under certain conditions.